Nimett & Estate of Nimett (deceased)

Case [2007] FamCA 1189


FAMILY COURT OF AUSTRALIA

NIMETT & ESTATE OF NIMETT (DECEASED) [2007] FamCA 1189
FAMILY LAW – PROPERTY SETTLEMENT – deceased husband – husband’s Will left his estate to two children [16 and 15] in equal shares upon attaining the age of 25 years - major asset rural property gifted to husband by his parents during the marriage – rural business operated in partnership by husband and wife until his death and operated in partnership by wife and executors after husband’s death – conflict and deterioration in relationship between wife and executors - interim orders gave wife virtual control of the operation of the property pending final hearing – final orders sought by executors for subdivision and/or sale of rural property – final orders sought by wife to hold the children’s share in trust until they attain the age of 25 years – disputes about alleged debts to husband’s parents – capital growth in value of property since gift to husband - consideration of 75(2) factors where one spouse deceased – consideration of requirements of s 79(8) – discussion of s 79(1), limitations of power, and considerations relevant to an order settling property on children pursuant to s 79 – order made settling portion of the estate’s entitlement on the children with their mother as trustee upon the same terms established by the Will
Family Law Act 1975 (Cth)

Allan and Allan (1987) FLC 91-824
Randle and Randle (1987) FLC 91-828
North and North (1987) FLC 91-831
Doyle and Doyle (deceased) (1989) FLC 92-027
Gilbert v Estate of Gilbert (1990) FLC 92-125
Hickey and Hickey & Attorney-General General for the Commonwealth of Australia (2003) FLC 93-143
Biltoft and Biltoft (1995) FLC 92-614
Prince and Prince (1984) FLC 91-501
J and J [1998] FamCA 163
Gosper and Gosper (1987) FLC 91-818
Kessey and Kessey (1994) FLC 92-495
Norbis and Norbis (1986) FLC 91-712
Bonnici and Bonnici (1992) FLC 92-272
McMahon and McMahon (1995) FLC 92-606
Kardos and Sarbutt (2006) 34 Fam LR 550
Bilous v Mudaliar & Anor (2006) 35 Fam LR 55
C and L (2006) FamCA 1366
Burgess v King (2005) 34 Fam LR 528
Pierce and Pierce (1999) FLC 92-844
Lawrie v Lawrie (1981) FLC 91-102 (per Asche, Fogarty and Gee JJ)
Menzies v Evans (1988) FLC 91-969 (Smithers J)
Tasmanian Trustees Limited v Gleeson (1990) FLC 92-156 (Strauss, Baker and Nygh JJ)
Parrott v Public Trustee of NSW (1994) FLC 92-473 (Nicholson CJ, Lindenmayer J and McGovern J)
Homsy v Yassa; Public Trustee (1994) FLC 92-442 (Coleman J)
Mason v Mason & Mason-King (1994) FLC 92-446 (per Baker, Lindenmayer and Bell JJ)
W & W [1999] FamCA 1765 (Jordan J)
G v The Public Trustee of the Australian Capital Territory (as Legal Representative of N) [2002] FamCA 751 (Finn J)
K & P [2003] FamCA 1491 (Collier J)
Saunders v Vautier (1841) CR & Ph 240; 49 ER 282
Dougherty v Dougherty (1987) 163 CLR 278
Randle and Randle (1987) FLC 91-828
Ferguson and Ferguson (1978) FLC 90-500

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AGLC
Nimett & Estate of Nimett (deceased) [2007] FamCA 1189
Case
[2007] FamCA 1189
Decision Date

CaseChat Overview and Summary

This matter concerned an application by a wife against the executors of her deceased husband's estate. The dispute involved the division of property pursuant to section 79 of the *Family Law Act 1975* (Cth). The Honourable Justice Moore of the Family Court of Australia presided over the proceedings.

The primary legal issue before the court was how to equitably distribute the assets of the former marital partnership and the deceased husband's estate between the wife and the estate. This involved determining the respective entitlements to real property, livestock, plant, equipment, and various financial accounts, as well as allocating responsibility for outstanding taxation liabilities.

Justice Moore ordered a significant division of the property. The wife was to receive 32.5% of the O property as a tenant in common, and a further 33.75% of the O property as trustee for each of the two children, to be held on trusts established by the deceased's will. Additionally, the wife was to receive the livestock, plant, and equipment owned by the former partnership, and the partnership's interest in a B Credit Union account. In return, the wife was ordered to assign her interest in a jointly held B Credit Union account to the deceased's estate. The remaining assets were to be retained by each party exclusively, with the estate bearing the deceased's and its own taxation liabilities, and the wife bearing her own taxation liabilities. The court also made provision for the Registrar or a Deputy Registrar to execute necessary documents if either party failed to do so.

Orders

Orders of the court

1.

Pursuant to s 79 of the Family Law Act 1975 on or before one (1) month from the date of these orders the respondent executors are to do all things and sign all documents necessary to

(a) transfer to the wife as a tenant in common 32.5% of the property known as O property;

(b) transfer to the wife as trustee for each of the children A and B 33.75% of the property known as O property as tenants in common to be held by her for each of the beneficiaries upon the same trusts created by the Will of their father, the late Mr Nimett;

(c) transfer to the wife the livestock, plant and equipment owned by the partnership formerly conducted by the wife and her late husband;

(d) assign to the wife the whole of the interest in the B Credit Union account held as an asset of the partnership formerly conducted by the wife and her late husband.

2.

Pursuant to s 79 of the Family Law Act 1975 on or before one (1) month from the date of these orders, the applicant wife is to do all things and sign all documents necessary to assign to the Estate of the late Mr Nimett the whole of the B Credit Union account held jointly by her with her late husband.

3.

Unless otherwise specifically referred to in orders 1 and 2 hereof –

(a) the estate is entitled to retain to the exclusion of the wife the assets currently owned by the estate including shares, sale proceeds of a motorbike and B Credit Union account and be responsible for payment of taxation liability incurred by the late husband and/or estate;

(b) the wife is entitled to retain to the exclusion of the estate the assets currently owned by the wife including deposits in financial institutions, shares, horses, gear and float and other chattels located on O property and her superannuation and be responsible for payment of taxation liability incurred by her.

4.

If either party refuses or neglects to execute any deed, instrument or writing necessary to give effect to these orders, the Registrar or a Deputy Registrar of the Family Court of Australia Sydney Registry is appointed pursuant to s 106A of the Family Law Act 1975 to execute it in the name of that party and to do all other necessary acts and things to give validity and operation to the deed, instrument or writing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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